Scott Stephenson: The Future of Rights Reform in the Age of the Referendum

In the last fortnight, two major pieces of constitutional reform returned to the political agenda. The House of Commons considered Conservative MP James Wharton’s private Member’s Bill that would provide for a referendum on whether the UK should remain a member of the EU. The Bill, according to Prime Minister David Cameron, will have ‘the full support of the Conservative Party’. Several days later, senior members of the Conservative Party made statements indicating that the Party would make ‘wholesale changes’ to the country’s system of human rights protection if it obtains a majority in Parliament at the next election. Proposed changes include repeal of the Human Rights Act and withdrawal from the European Convention on Human Rights. In this post, I consider whether the former might have implications for the latter—whether the rise of the referendum could and/or should affect the future of rights reform in the UK.

As is well known, no special procedure is required to amend the UK’s constitutional system. Even significant changes, such as curtailing the House of Lords’ powers and subjecting UK law to European Community law, can occur by ordinary legislative enactment. As a matter of formal law, this position continues undisturbed. Yet the referendum is now a prominent feature of the country’s constitutional landscape. As Wharton told the House of Commons on 5 July, ‘we live in the age of the referendum’. Since the 1970s, referendums have been held on a range of areas of significant constitutional reform: membership of the European Community, devolution, local government and the electoral system. Political imperatives typically lie behind the announcement of a referendum—to maintain party unity, to secure the agreement of a coalition partner, to appear to be taking action on an issue and so forth. Nevertheless, political events can produce constitutional change (e.g. the Salisbury Convention). The UK constitution’s uncodified character renders it particularly susceptible to such modification. Has, therefore, the increasing resort to referendums shifted the normative and political benchmarks for significant constitutional reform?

Historically, popular fidelity to the UK’s constitutional system could not be ascribed to direct involvement in its creation and renewal (e.g. the Australian Constitution’s referendum requirement) or strong, widespread identification (e.g. perceptions of the United States Constitution as ‘our law’ or the country’s ‘civil religion’). Employing Grażyna Skąpska’s terminology, Mark Tushnet wrote that the UK offers a ‘good model’ of ‘grassroots constitutionalism’ by which he means that constitutional ‘loyalty or enthusiasm … arises from performance, not process’. ‘If comitology produces the (constitutional) goods’, Tushnet said, ‘grassroots constitutionalism posits that the citizenry will not care how that comes about’. The advent of the referendum casts doubt on this characterisation. Today, process arguably plays a substantial role in legitimating major constitutional decisions about, for instance, devolution. Could one plausibly posit that the citizenry does not care how future changes to the composition of the UK come about? Whether the Scots are given a say on Scottish independence or not? Indeed, UK governments initiate referendums precisely for their process-based qualities—that referendums are capable of engendering enthusiasm for and enhancing the legitimacy of constitutional decisions.

To be sure, a process of popular ratification does not remove performance as a source of legitimation as current debate about membership of the EU demonstrates. The 1975 referendum has not stopped citizens and politicians from seeking to revisit the issue as a result of dissatisfaction with how the EU is affecting the UK and its ability to govern. Tellingly, however, it appears that a decision to withdraw will not be made without first complying with a particular process: another referendum. It might be said, therefore, that an unwritten standard of conduct—a constitutional norm—is under development in respect of the process to be followed for future decisions of significance on devolution and EU membership.

How might, and should, the growing importance of process affect the future of rights reform? The protection of human rights is an area of constitutional law no less important than devolution or EU membership. A decision to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights could not be dismissed as a minor or technical constitutional matter. Reform may raise subtle questions of law concerning the role of courts—their powers and interpretive techniques—and the difference between UK and European forms of judicial oversight. Yet these issues are no more taxing than questions of independence, which involve a complex admixture of cultural, economic and political factors, and systems of voting, which involve nuanced differences between first-past-the-post and alternative vote.

One might argue that human rights issues should not be put to a referendum due to the risk of majoritarian abrogation of minority rights. Yet no single structure for the protection of human rights is incontrovertibly the most legitimate and effective as the debates between legal and political constitutionalists indicate. This reasonable disagreement about questions of structure counsels for, not against, a process of popular involvement. Even within the realm of judicially enforced rights instruments there is significant scope for differences of opinion—and thus democratic resolution—on the rights that should be included as well as the respective powers and responsibilities of the three branches of government.

Should the age of the referendum be viewed as a welcome development? Stephen Tierney notes that the mechanism ‘can carry very substantial risks to democratic constitutionalism itself’. He states that the power to initiate referendums can empower the executive ‘to achieve [its] political goals by manipulating an unreflective and ill-informed electorate into voting for a particular proposition’. Ireland’s current experience with the proposed abolition of its upper house demonstrates how a referendum can be used to narrow and distort the terms of debate on constitutional reform. The risks are particularly acute in the context of human rights where there is a prevalence of scare tactics and misinformation. Yet if the government proposed, or a sector of civil society campaigned for, a referendum in connection with a major decision on rights reform, it would be difficult to argue that the people do not have the right to have a say on an issue of such importance. Such arguments will become even more difficult if a constitutional norm develops requiring significant reform decisions in other areas such as EU membership to be made by referendum.

Scott Stephenson is a J.S.D. Candidate and Tutor in Law at Yale University

Suggested citation: S. Stephenson, ‘The Future of Rights Reform in the Age of the Referendum’ UK Const. L. Blog (17th July 2013) (available at http://ukconstitutionallaw.org)

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The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’.